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Saturday, June 15, 2013

Ever since the shooting in Newtown, Connecticut six months
ago there has been a conversation in this country about gun control. Many on
the Left assert that gun control is needed to ensure that situations like that
which happened in Newtown do not happen again, while many on the Right assert
that gun control measures would not have stopped that tragedy, and instead of
restricting access to firearms, we must encourage their widespread availability.

The discussion over the efficacy of gun control measures
will go on for years and years to come, but that is not what I am going to be
discussing today. Instead, my goal is to clear up some of the common
misconceptions that exist in relation to the constitutionality of gun control
measures. I will not be addressing all gun control measures, or even attempting
to go into the constitutionality of specific gun control measures – those instead
will be for future posts on this matter. Instead, my goal is to clear up some
of the rhetoric which exists that claims that ANY gun control measure violates
the 2nd Amendment.

Many on the Right, led astray by the rhetoric of the National
Rifle Association, believe that ANY gun control measure (whether that be
background checks, magazine limits, assault weapons ban, or national firearm
registration) violates the Second Amendment of the U.S. Constitution. I call
these people “2Aer’s”, because of their extreme fealty to the literal words of
the Second Amendment. 2Aers assert that the Second Amendment states that the
right to bear arms “shall not be infringed”, and then continue to repeat that
refrain as if that ends the conversation. Such a simplistic understanding of
the Second Amendment, though making for a good sound bite, clouds what should
be a rational discussion on gun control, and perpetuates the idea that exists
on the Right that “liberals hate the Constitution”.

The two most influential cases on the Second Amendment in
the past decade would be the Supreme Court’s decisions in District of Columbia
v. Heller (2008) and McDonald v. City of Chicago (2010). Heller dealt with D.C.’s
complete prohibition on handguns in the home, striking down such a complete
prohibition as violating the 2nd Amendment. McDonald, on the other
hand, dealt more with whether the 2nd Amendment was applicable to
the States (relying on SCOTUS’s incorporation doctrine manifesting out of the
14th Amendment). These two
cases laid out a framework in which other Courts in the United States could
address firearm regulations and whether or not said regulations violated the 2nd
Amendment. Unlike what 2Aers claim, though these cases established an
individual right to possess a firearm, they did not forestall all governmental
regulation of said right. In fact, Scalia, in writing for the majority in Heller,
specifically states that “nothing in our opinion should be taken to cast doubt
on longstanding prohibitions on the possession of firearms by felons and the
mentally ill, or laws forbidding the carrying of firearms in sensitive places
such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms”. (pg. 626-627 of the decision). Furthermore, the majority in Heller, though
not specifically stating as such, implies that regulations on the carrying of
concealed weapons, as well as the restricting of certain types of weapons by
the government (eg. assault weapons) would pass Constitutional scrutiny.

Because Heller and McDonald were not clear about how far
government can go in regulating firearms, the Courts of Appeal throughout the
United States have crafted a two-part test to address these situations. First,
the Court will look at whether a particular provision impinges upon a 2nd
Amendment right, and if it does, the Court will look at whether said provision
passes constitutional muster under the appropriate level of scrutiny. An
excellent example of how the Court addresses a regulation in relation to these
two tests is found in the follow up case to Heller that was heard by the D.C.
Circuit Court of Appeals in 2011. In that case, the Court looked at whether a basic
registration scheme for both handguns and long guns was consistent with the 2nd
Amendment. In finding such a registration scheme passed the first test in relation to handguns,
the D.C. Circuit Court stated that not only were basic handgun registration
requirements a longstanding feature of American firearms law, but that any
burden on the 2nd Amendment right was de minimis, as many other
features of American life required registration . The registration requirements
for long guns on the other hand, because there was not a longstanding practice
in America of such a requirement, did not pass the first test, and instead had
to be analyzed by the Court.

In Heller (2008), the Court found that rational basis review
(that is, that the Government can basically have whatever policy it wants to as
long as it has a rational basis for doing so) was not an appropriate standard of
review for firearm regulations. Instead, the Court left open what standard of
review was appropriate. If a firearm regulation burdens a right at the “core”
of the 2nd Amendment (self-defense in one’s home), Heller suggests
that strict scrutiny is an appropriate standard of review. Strict scrutiny is
when a regulation has to have a compelling government interest, be narrowly
tailored to that interest, and must be the least restrictive means to
accomplish the government’s goal. Outside of the firearm regulations that
burdened the “core” of the 2nd Amendment right, Heller left open the
ability of lower Courts to use a less restrictive level of Court scrutiny (intermediate
scrutiny) to analyze firearm regulations.
If a firearm regulation furthers an important governmental interest in a
way that is substantially related to that interest the Court will find such a
regulation Constitutional. Though in the follow up case to Heller, the D.C.
Circuit could not rule on whether long gun firearm registration was
constitutional (it did not have enough information), it deemed that such a
regulation was deserving of intermediate scrutiny, as the regulations did not
prevent an individual from possessing a firearm in the home.

In review, per current Supreme Court case law, the 2nd
Amendment does not establish a complete ban on any regulation of firearms by
the Government. Instead, the Court has left the Government a large amount of
wiggle room in how it chooses to craft its firearm policies. As long as a
firearm regulation does not burden the core of the 2nd Amendment
right – that is, self-defense in the home – it likely will not be subject to
strict scrutiny, and instead will be subjected to the less onerous intermediate
scrutiny. Though the sound bite of “shall not be infringed” may play well to a
rabidly pro-gun base, it does not tell the whole story behind the 2nd
Amendment, and instead leads to an uneducated and ignorant populous.

As this is a very fluid and misunderstood area of the law, I
will continue over the next few weeks to analyze specific gun control policies
from a constitutional perspective. As always, I welcome any questions and
comments that my readers may have.